AIMAL M4AN, AcTG. C. J.-This appeal is directed against the judg--ment dated 29th September, 1986 passed by the learned Additional District and Sessions Judge, Usta Muhammad in Sessions Case No. 17 of 1985 convicting the present appellants, who are six in number under section 148, P. P.
C. And awarding them two years' R. I. Each and also convicting them under section 302/149, P. P. C.
And awarding life imprison--ment to each of them and to pay a fine of Rs. 5,000 each or in default to undergo further six months' R.
1. It is also ordered that in case of recovery of fide, the same should be paid to the; legal heirs of the deceased. The brief facts leading to the filing of the above case are that Ghulam Qadir, brother of the deceased Muhammad Ishaque lodged the F.
1. R. Which was recorded by P. W. 15 S. H. O. Jameel Asghar (Exh. P/B) at 4-15 p. m. At Police Station Usta Muhammad, stating therein that he was resident of village Syed Shah Muhammad Shah, near Khanpur bridge at Sippi Shakh and was a Zamindar by profession. 1t was alleged that on 15th April, 1985, at afternoon (Sehpahar) time, he, his brother Muhammad Ishaque and uncle Ismail were at home when appellant Mohib Ali Unirani, who was a friend of his brother Muhammad Ishaque bad taken him to Usta Muhammad for trip. It was further alleged that on the day of incident i. e. 16th April, 1985 at about 3-30 p. m. Muhammad Ishaque and appellant Mohib Ali Umrani returned from Usta Muhammad. It was also alleged that he, his brother Muhammad Ishaque and appellant Mohib Ali Umrani were exchanging news at the bank of Sippi Shakh, when appellant Jani Dashti, one of the Dashtis residing near them, came and took Muhammad lshaque and appellant Mohib Ali Umrani to his house for offering tea was also alleged that after a little while, on hearing continuous firing, ha and his uncle Muhammad Ismail reached the house of Jani Dashti and saw that appellant Mohib Ali Umrani armed with Klashinkov, and Sukhia Dashti, Shah Dost Dashti, Jani Dashti and Aslam armed with guns were running towards north while firing. They saw that the deceased Muhammad lshaque on account of fire-arm injuries at his chest and abdomen had expired in the house of Jani and Aslam. It was further alleged that his brother Muhammad Ishaque was taken by the appellant Mohib Ali Umrani on the pretext of friendship and because of conspiracy with appellants Sukhia, Jani, Shah Dost and Aslam, they had murdered his brother on the plea that Aslam Dashtis wife was "Siahkar" with his brother Muhammad Ishaque. It was al,o stated that Aslam Dashti---s wife being "Siahkar" with one Ganwar Khan Jamali had been in the shelter of Sardar. Yar Muhammad Khan Jamali for the last two months. It was alleged that he, his uncle and other villagers were present at the scene of offence to guard the dead body of his brother.
In pursuance of the above F. I. R., the aforesaid S. H. O. Jamil Asghar visited the place of "Vardat" and prepared the following docu--ments:-
(i) Inquest report (Exh. P/C).
(ii) Mashirnama of recovery of S M G along with 2 Magazines and 12 live bullets of 7.62 bore. (Exh.
P/E).
(iii) Mashirnama of the inspection of the place of "Vardat". (Exh. P/F). .
(iv) Mashirnama in respect of the blood-stained earth secured from the place of "Vardat" (Exh.
P/G).
(v) Mashirnama of securing four empty cartridges of ' 12 bore and also Parcel No. 2 in respect thereof (Exh. P/H).
The dead body was sent by the Police Station Usta Muhammad for post-mortem on the same day, which was received by P. W.. 1 Dr. Mushtaque at 5-15 p. m. He started post-mortem examination at 5-25 p. m. And completed the same at 6-25 p. m. On examination of the dead body, he found the following external injuries:-
(1) One bullet wound of entrance on left shoulder near the left axillar about 3/ 4" in diameter.
(2) Wound of exit on the right side of the chest in the mid-axillary line about 1" in diameter.
(3) Wound of entrance on the left side back of chest 1" in diameter blackening his tve.
(4) Multiple wounds of exits on the left side of chest near axillar each 1/4" diameter,
(5) Wounds of entrance on the back of left side of abdomen each 1/4" in diameter.
(6) Wounds of exists on the right side in front of abdomen each 1/4" in diameter.
(7) Lacerated wound in front of abdomen 3" x 2" x ".
He also found the following internal injuries:- "Internal damages.-Thorax-wall. Lacerated 2nd and 3rd ribs fracture. Plaurae-Lacerated on both sides. Right lung lacerated, left lung lacerated.
Abdomen.-Wall Lacerated-peritoneum lacerated, stomach empty otherwise healthy-small entestine lacerated, large entestinc lacerated apleen lacerated."
He opined that the death was resulted due to injuries on the vital organs, which were on right and left lungs, hemorrhage and shock. He further opined that the injuries were ante-mortem in nature and homicidal in character which appeared to have been caused by discharge of fire-arm. He also opined that the time between injury and death was instantaneous whereas between death and post-mortem 6 to 10 hours. He also produced the post-mortem report as Exh. P/A. In his cross- examination, he had deposed that Injuries Nos. 1 and 2 were result of bullets whereas, Injuries Nos. 3 to 7 were result of gunshots, as they were pellet wounds. He had further deposed that Injuries Nos. 3 to 7 could be the result of three gunshots, whereas Injuries Nos. 1 and 2 were the result of one shot.
He also stated that there was no blackening and charring on the above Injuries Nos. 5 to 7, therefore, the said injuries might have been caused by fire arm-from beyond 6 feet within two hours prior to death of the deceased.- He also stated that the deceased had not taken any sort of food before receiving the above injuries. In his re-examination, he produced five pellets from the dead body of deceased Muhammad Ishaque.
It may be observed that in the F. I. R. Only 5 appellants were named as accused and so also in the.
Police statements of the witnesses, but during the investigation, the police arrested 6 persons including one Zanghi, who was not named in the F. I. R. And in the police statements. The details of the dates of arrests, dates of recoveries of crime weapons from the appellants with exhibits, names of the Mashirs to the recoveries and the Ballistic expert's report in respect of the aforesaid recoveries are as follows;- S. No. Name ofDate ofDate ofArticlesMemo. ofName. ofBallistic appellant.Arrest.Recovery.Recovered.Recoverywitness ofExpert's recovery.Report.
1. Mohd. Aslam19-4-85No recoveries.
2. Jani22-4-8529-4-85' 12 bore shot gunExh. P/QP.W.-14 P. C.Two *12 bore No. 6089 (Art. 40)page 81Rahmat-empties with 2 live cart-ullah(C3-C4) ridges (Arts. 41-(Page 79)fired from 42) from bushesthis Gun. behind his house.
3. Sukhia2-5-8516-5-85One 7 MM RifleExh. P/MPW-11 H. C. Not connect-- No. B 11312 (Art.Page 67Mohded.
32) and 3 bulletsShahban (Arts. 33-35) from(page 65) heap of palal in his house.
4. Zanghi2-5-853-5-85Kalashinkov No.Exh. P/EPW-6 H. C.Not connect-- 1949-1625 belong-page 37Mobd Ejaz.Ed. ing to deceased(page 33)
Mohd Ishaq (Art. 1) with two magazines (Arts. 2-3) and 12 live bullets (Arts. 4-- 15) from a but of straw adjacent to his house.
17-5-85One ' 16 bore shotExh. P/PPW-13 H. C.Not connect- gun (Art. 39) withpage 77Mohd Afzal. Ed. two live cartridges(page '75)
(Arts. 43-44)
5. Shah Dost14-5-8525-5-85One *12 bore SBExh. P/NPW-12 H. C.Two '12 bore Shot Gun No.Page 71Nazir Ahmed.Crime empties 15994 (Art. 36)(C1-C 2) were and 2 cartridges(Page 69)fired from (Arts. 37-38) fromthis gun, a cabin in his house.
6.Mohib Ali20-4-8524-4-85One KlashinkovExh. P/JPW-8Three 7*62 No. 66-56-8243616page 55Shadi Khanbore crime (Art. 21) one(relatedempties magazine (Art. 22)to deceas-fired from and 5 bulletsed)Klashinkov (Arts. 23-27)(page 53)No. 43616 from beds in hissays this house.Was on next day of death of Ishaq (i. e.
17-4-85)
2. The prosecution has relied upon the ocular evidence of P. W. 2 Ghulam Qadir, P. W. 7 Muhammad Ismail as eye-witnesses, though factually they are not eye-witnesses, as they had not seen the act of killing. The latter is also Mashir to the Mashirnnma of inspection of the place of "Vardat" (Exh. P/F), Mashirnama in respect of blood-stained earth secured from the place of "Vardat" (Exh. P/G), and Mashirnama in respect of four empty cartridges of *12 bore secured from the place of "Vardat" and sealed in Parcel No. 2 (Exh. P/H). The prosecution has also relied upon the testimony of P. W. 4 Abdul Sattar, father of the deceased Muhammad Ishaque and P. W. 5 Qaisar Hayat, uncle of the deceased, as corroborative piece of evidence, but the learned trial Court in Para. 20 of the judgment under appeal discarded their testimony for cogent reasons. Reliance was also placed on the ocular evidence of above P. W. 1 Dr. Mushtaque, P. W. 3 Arz Muhammad, at the relevant time posted as Tehsildar and 2nd Class Magistrate at Usta Muhammad who recorded the alleged retracted confession of appellant Muhammad Aslant, P. W. 6 Muhammad Ejaz, a Police Constable at the relevant time posted at Usta Muhammad Police Station, P. W. 8 Shadi Khan, one of the relatives of the deceased Muhammad Ishaque, P. W. 9 Muhammad Sadiq, Head Constable, P. W. 10 Ghulam Nabi, Police Constable, P. W. 11 Muhammad Shaban, Head Constable, P. W. 12 Nazeer Ahmed, Head Constable, P. W. 13 Muhammad Afzal, P. W. 14 Rehmatullah, Foot Constable, all Mashirs to the recoveries referred to hereinabove in the above chart and of P. W. 15 S. 1. Jamil Asghar, S. H. O.
Police Station, Usta Muhammad, who investigated the case and made recoveries of crime weapons and other items. The prosecution also relied upon the Chemical Examiner's report (Exh.
P/S) and Ballistic Expert's report (Exh. P/T). In addition to the above evidence, the prosecution had also relied upon the retracted judicial confession of appellant Muhammad Aslam and the motive.
The learned trial Court has also discarded the retracted confession on the ground that P. W. 3 Arz Muhammad, Tehsildar and 2nd Class Magistrate at the relevant time, had no power to record the same. However, he has relied upon the motive. The learned trial Court on the basis of the above evidence, excluding the evidence discarded, recorded the above convictions and awarded sentences referred to hereinabove, but acquitted the appellants for the charge under section 404, P. P. C. For misappropriating the Klashinkov allegedly belonging to the deceased Muhammad Ishaque.
The appellants being aggrieved by the above judgment have filed the present appeal.
3. In support of the above appeal, Mr. Muhammad Hayat Junejo, Advocate assisted by Mr. Azizullah Memon, Advocate has submitted as follows:-
(i) That since the alleged eye-witnesses P. W. 2 Ghulam Qadir and P. W. 7 Muhammad Ismail have admittedly implicated falsely one of the appellants Zanghi, their evidence requires corroboration by in--dependent and reliable piece of evidence;
(ii) That the recoveries are liable to be discarded for more than one reason;
(iii) That the motive as alleged in the F.
1. R. Hag not been proved; and
(iv) That the version given by the prosecution does not fit in, with the proved facts on record.
On the other hand, Mr. Muhammad Nawaz, learned counsel appearing for the State has submitted as under:-
(i) That the statements of the above eye-witnesses P. W. 2 Ghulam Qadir and P. W. 7 Muhammad Ismail are reliable;
(ii) That the recoveries cannot be discarded;
(iii) That against the appellants Muhammad Aslant and Jani, there is strong corroborative piece of evidence in the form that the deceased was taken by the appellant Jani to his joint house with the co---appellant Muhammad Aslam and that the dead body was found in their house;
(iv) That the appellants duly armed with deadly weapons were found running from the place of incident immediately after the above incident bad taken place; and
(v) That the motive has been rightly relied upon by the learned trial Court.
4. Adverting to the first submission of Mr. Muhammad Hayat Junejo, learned counsel for the appellants that since the alleged eye-witnesses P. W. 2 Ghulam Qadir and P. W. 7 Muhammad Ismail have admittedly implicated falsely one of the appellants Zanghi, their evidence requires corroboration by independent and reliable piece of evidence, it may be observed that P. W. 2 Ghulam Qadir in his deposition has reiterated what he had stated in the F.
1. R., except that he made certain improve--ments, namely, that he implicated appellant Zanghi and alleged that he was armed with gun, though this fact was not mentioned in the F. I. R. Or in his police statement, as stated by P. W. 15 S. 1. Jameel Asghar. He also referred to the empties, which were not mentioned either in the F. I. R. Or in his police statement, whereas the other alleged eye-witness P. W. 7 Muhammad Ismail has made lot of improvements. Apart from implicating the appellant Zanghi and referring to the empti--s at the site, he also stated that he was also present with the deceased, A appellant Mohib Ali and P. W. 2 Ghulam Qadir, while they were having chat at Sippi Sbakh near Khanpur bridge, though P. W. 2 Ghulam Qadi has not said so. He has also introduced the alleged extra-judicial confes--sion made by the appellant while running away from the site of incident by alleging that they had told him that they had killed the deceased, as he was declared "Siahkar" with the wife of appellant Muhammad Aslam, which was not stated by him in his police statement.
There are many other improvements referred to in the statement recorded by the learned trial Court. Besides the above fact, it may also be observed that according to the complainant party, there was motive, namely, that appellant Muhammad Aslam's wife was wrongly declared as "Siahkar" with the deceased Muhammad lshaque, though she was already declared as "Siahkar" with one Ganwar Khan Jamali two months prior to the incident, whereas, according to the ' appellants, the complainant party had motive to falsely implicate them on account of dispute over the lands. In either case, it appears that the parties were not on cordial terms as H per their statements, except that appellant Mohib Ali was a friend of the deceased.
In furtherance of his above submission, Mr. Muhammad Hayat Junejo, learned counsel for the appellants has referred to the following cases:-
(i) Wazir and others v. The State reported in PLD 1960 (W. P.y Kar. 674 in which, a Division Bench of the erstwhile High Court of West Pakistan at Karachi inter alia, held that in case of admitted enmity, the statements of the eye-witnesses who are inter se related among themselves and also with the deceased should be scrutinised with great care.
(ii) Mujahid Hussain v. The State reported in 1985 SCMR 1573. In the above case, the Honourable Supreme Court while accepting the appeal against the judgment of the Lahore High Court in a murder case pointed out that the eye-witness who was related to the complainant party and was hesitant to answer important question, caused serious doubt as to his presence.
(iii) Chandoo alias Chand Muhammad v. The State reported in PLD 1985 Kar. 239 in which, a Division Bench of the Sind High Court held that the evidence of interested witnesses requires Corroboration.
(iv) Sabu and another v. The Sate reported in PLD 1966 (W. P.) Kar. 637. In the above case, two of the several accused were acquitted on the ground that their names were not mentioned in the F. 1.
R. It was held that the other co-accused couldn---t be convicted on the evidence of the same witnesses in the absence of other corro--borative evidence.
(v) Khurshid Ahmad v. Kabool Ahmad and others reported .In PLD 1964 (W. P.) Kar. 356 in which, it was held by a Division Bench of the erstwhile High Court of West Pakistan at Karachi that since the eye-witnesses were interrelated and inimically disposed towards the accused, their testimony required corroborative evidence of exceptional strong and sufficient by itself to establish guilt of individual accused beyond reasonable doubt.
(vi) Ghulam Sikandar and another v. Mamaraz Khan and others reported in PLD 1985 SC 11. In the above case, the Honourable Supreme Court of Pakistan, inter alia, held that the principle ` falsus in uno falsus in omnibus" is not applicable in Pakistan. It was further held that the same principle has been described in some cases, slightly differently, namely, that the testimony of an eye-witness should" not be treated as indivisible although there is no consensus with regard to the latter view. It was further held that time the testi--mony of a witness found false with regard to implication of one accused about whose participation he had deposed on oath, the credibility of such witness regarding involvement of the other accused in the same occurrence, is shaken, but if .The testimony of such witness is corroborated by very strong and independent circum--stances regarding other, the reliance might then be placed on the witness for convicting the other accused.
(vii) Abdul Hamid and another v: The State reported in 1985 P Cr. L J 1992. In the above case; the maxim "falsus in uno falsus in omnibus" was referred to and it was held by a Division Bench of the Sind High Court that the two natural eye-witnesses having been found by the trial Court had falsely implicated two co-accused, the trial Court was not justified in convicting the other co-accused, unless such evidence was corroborated by independent piece of evidence worth-reliance. Accordingly, the appeal of the accused was allowed and the convictions and sentences were set aside.
(viii) Zulfiqar Ahmad v. The State reported in PLD 1986 SC 477 in which, the Honourable Supreme Court granted leave against the conviction of one co-accused upon petition for leave filed by him and against the acquittal of two co-accused upon petition for leave filed by the State and observed that where the testimony of eye--witnesses has been disbelieved with regard to some of the accused, such testimony can be used against remaining accused only when some independent corroboratory evidence is available on record to support their testimony qua those accused.
(ix) Iqbal v. The State reported in 1986 SCMR 982. In the above case, the Honourable Supreme Court while allowing an appeal against the conviction dilated upon the maxim `falsus in uno falsus in omnibus" (false in one thing, false in all) and held that the same could not safely be applied to evidence of witnesses where evidence was substantially correct, simply because there were some deliberate falsehood in it.
On the other hand, Mr. Muhammad Nawaz, learned counsel for the State has referred to the following cases:-
(i) Ghaus Muhammad alias Ghausa and another v. The State reported in 1979 SCMR 579 in which, the Honourable Supreme Court allowed the appeal of the convict by holding that sufferance of gunshot by deceased is not sufficient to fix identity of assailants and that the testimony of witnesses be subjected to same measure rod of scrutiny as applied to cases of blood feud of decades line.
(ii) Allah Baksh v. Shammi and others reported in PLD 1980 SC 225. In the above case, the Honourable Supreme Court allowed the appeal against the acquittal and ordered retrial and held that even in murder case, the conviction can be based on testimony of a single witness, if the Court is satisfied that the testimony was reliable. It was also held that emphasis should be laid on the quality of evidence and not on its quantity.
(iii) Wali Muhammad and others v. The State reported in PLD 1982 SC 55. In the above case, the Honourable Supreme Court upheld the conviction of the two accused and allowed the appeal of the third co-accused. It was held that the principle of "falsus in uno falsus 1n omnibus" having long been abandoned, the Court can scrutinise the statements of the eye-witnesses, even if there was some discrepancy as to the number of injuries deposed by the witnesses and the medical evidence.
5. From the above-cited cases, inter alia, the following principles are deducible:-
(i) That the consensus of view of the superior Courts obtaining in Pakistan seems to be that the maxim "falsus in uno falsus in omnibus" is not applicable in Pakistan, but the Court is to sift grain from the chaff ;
(ii) That in case it is found that an eye-witness though natural has, falsely implicated one or more accused persons, his testimony cannot safely be relied upon in the absence of some reliable independent corroborative piece of evidence;
(iii) That in case enmity between the complainant party and the accused party is proved or admitted and the eye-witnesses are related to the deceased, their testimony can not safely be the foundation for recording conviction in the absence of independent corroborative piece of evidence;
(iv) That in case there is material contradiction on a material point between the testimony of a natural eye-witness and the medical evidence, which cast doubt as to his presence at the time of the incident, it will be unsafe to record conviction on the basis of his testimony in the absence of reliable independent corroborative piece of evidence, and
(v) That the conviction in a murder case can be recorded solely on the testimony of a single witness provided the Court found him trustworthy.
6. This leads us to the question, whether there is any independent reliable corroborative piece of evidence in order to reinforce the testimony of the above P. W. 2 Ghulam Qadir and P. W. 7 Muhammad Ismail. The learned trial Court has relied upon the motive and the recoveries. In our view, the motive coming from the months of the same witnesses cannot be relied upon. In this behalf; reference may be made to the case of Nawaz All and another v. The State (1981 SCMR132), wherein at page 136 the Honourable Supreme Court has made the following observation:- "However, the learned Advocate-General drew our attention to the fact that the learned Judges were also of the view that the ocular evidence was "fully corroborated by the motive " with respect, we are unable to agree with these observa--tions, of the learned Judges, which are contrary to the evidence on the record. It is true that the eye-witnesses gave evidence of motive, but as the question was of the corroboration of their evidence, their own statements about the motive for the crime could not furnish corroboration of their evidence about the identity of the assailants."
Additionally, it may also be observed that from the evidence on record, the alleged motive seems to be of doubtful character, inasmuch as, according to the prosecution witnesses, the appellant Muhammad Aslam's wife was declared "Siahkar" with one Ganwar Khan Jamali prior to the incident and for the last two months she was under the protection of Yar Muhammad Khan Jamali and was living in his house. D It is highly improbable that the appellant Muhammad Aslam could have spared the above Ganwar Khan Jamali and his wife. It is also vague as to when the deceased Muhammad Ishaque was declared as "Siahkar" It may also be pointed out that motive is a double- edged weapon, which also provides reason for the complainant party to falsely rope in innocent persons belonging to the accused party.
In our view, the motive in the instant case cannot furnish the] corroboration of the nature which is required particularly in view of the E fact that 6 persons are involved arid not the appellant Muhammad Aslant, alone.
7. Further question, which requires consideration is as to whether the recoveries of the crime weapons and empties relied upon by the learned trial Court for recording convictions, was rightly relied upon for the purpose of corroborating the testimony of the above two witnesses, namely, P.
W. 2 Ghulam Qadir and P. W. 7 Muhammad Ismail. In this regard, it may be pertinent to point out that as per record, there was no recovery made from the appellant Muhammad Aslam and, therefore, there is no corroborative piece of evidence in the form of recovery against him, whereas, as per Ballistic expert's report, the empties did not math with the rifle recovered from the appellant Sukhia and Klashinkov recovered from the appellant Zanghi. In the absence of any matching of the empties with the recovered weapons, simpliciter recovery of weapons would not provide the requisite corroboration of the nature F required to reinforce the above ocular evidence.
Additionally, mm rifle was not mentioned in the F. I. R., which was allegedly recovered from the appellant Sukhia, whereas, we have already held that the appellant Zanghi has been falsely implicated for the reasons already referred to hereinabove. In this view of the matter, we are left with the recoveries of 3 appellants, namely, Jani, Shah Dost and Mohib Ali.
Mr. Muhammad Hayat Junejo, learned counsel for the appellants has vehemently urged that the recoveries cannot be relied upon, inter alia. For the following reasons :-
(i) That the alleged recoveries were effected after prolonged inter--rogation, in some cases even after more than 7 days and, therefore, the same cannot be termed as voluntary;
(ii) That the Mashirs to the recoveries in respect of appellants Jani and Shah Dost are police personnel, though private persons were available in the locality and, therefore, their evidence cannot be relied upon;
(iii) That there was delay of about three months in despatching of the empties and the crime weapons;
(iv) That since the appellant Zanghi was falsely implicated, the recovery of Klashinkov from him was apparently foisted on him and, therefore, this would adversely reflect the recoveries from the other appellants ; and
(v) That to the alleged recovery made from the appellant Mohib Ali though the Mashir was private person P. W. 8 Shadi Khan, but he was closely related to the complainant party and his evidence does not inspire confidence.
Whereas, Mr. Muhammad Nawaz, learned counsel for the State has tenaciously contended that the recoveries were normal and that neither the factum that the police personnel are Mashirs, nor the delay, would in any way affect the evidentiary value of the said recoveries. He further submitted that there was normal interrogation. He also submitted that P. W. 8 Shadi Khan was a natural and reliable Mashir to the recovery.
8. Adverting to the first submission of Mr. Muhammad Hayat Junejo, learned counsel for the appellants that the alleged recoveries were effected after prolonged interrogation, in some cases even after more than 7 days and, therefore, the same cannot be termed as voluntary, it maybe observed that he has referred to the admission on the part of P. W. 15 S.1. Jameel Asghar who has stated in his cross-examination that "from the date of their arrest till the day of recoveries the accused were interrogated but they were not prepared to lead to the recoveries earlier . . . . . ." He has also referred to the case of Piaremian v. The State (1978 P Cr. L J 369), in which, a Division Bench of the erstwhile High Court of Sind and Baluchistan observed as follows :- "The only confirmatory evidence is that of the discovery of the revolver but it seems to be involuntary because the revolver was recovered three days after the commission of the offence and it has been admitted by the investigating officer that for three days continuously he kept on interrogating the appellant. The possibility of foisting of the weapon upon the appellant and discovery by using third degree methods cannot be ruled out from consideration. It would not therefore be safe to consider this discovery as confirma--tory circumstance. The case of the appellant is therefore at par with that of the acquitted accused and the ocular testimony of the eye-witnesses which has not been believed in their case is also not worthy of any credence in case of the appellant."
The above-cited case supports the case of the appellants, inasmuch as, that the appellant Jani was arrested on 22nd April, 1985, whereas recovery was effected from him on 29th April, 1985.
Similarly, the appellant Shah Dost was arrested on 14th May, 1985, whereas the recovery was effected from him on 25th May, 1985. In the case of appellant Mohib Ali, he was arrested on 20th April, 1985, whereas the recovery was effected on 24th April, 1985. In the case of first two appellants referred to hereinabove, the recoveries were affected after 7 and 11 days respectively, whereas, in the case of third appellant Mohib Ali referred to hereinabove the recovery was effected after 4 days. It will suffice to observe that as a general rule, it cannot be accepted that a recovery after prolonged interrogation is liable to be discarded. It will depend on the facts o G each case. The factum that the recovery was affected after prolonged interrogation may be relevant to decide the question of evidentiary value of such recovery in conjunction with the other facts, which may cast doubt as to the genuineness of the recovery.
9. As regards Mr. Muhammad Hayat Junejo's submission that the Mashirs to the recoveries in respect of appellants Jani and Shah Dost are police personnel, though private persons were available in the locality and, therefore, their evidence cannot be relied upon, it may be observed that he has also invited our attention to the fact that to the recoveries from the other appellants, namely, Sukhia and Zanghi, Mashirs were also police personnel, i.e. P. W. 11 Muhammad Shaban, H.
C. And P. W. 6, Muhammad Ejaz H. C. Respectively. He has further submitted that according to the statements of the witnesses, there were other houses nearby to the places of the recoveries and, therefore, in the absence of any cogent reason not to have respectable local residents as Mashirs, the police personnel could not have been employed as Mashirs. In furtherance of his above submission, he has referred to the case of Muhammad Ismail v. The State (PLD 1979 Kar. 31), in which, a learned Single Judge of the Sind High Court while construing section 103, Cr. P. C: held that the police officer at the time of search should be accompanied by two respectable persons other than the police officer. It was also held that the above provision was designed to create safeguard against possible chicanery and concoction on the part of Investigation Officer and that violation of the above provision cannot be lightly countenanced.
On the other hand, Mr. Muhammad Nawaz, learned counsel appearing for the State has referred to the case of Kamir v. Nazir Ahmed and others (1980 SCMR 791), in which, the Honourable Supreme Court while maintaining the conviction in a murder case held that evidence of police officer as to the recovery can be accepted.
10. In our view, the question, whether the evidence of a police officer as to the recovery can be accepted or not, will depend upon the facts of each case. If it was not possible to have a respectable local resident as a Mashir and there is no other reason to cast doubt as to the recovery or where there were two Mashirs, one respectable local resident and the other a police officer, and the respectable local resident during the trial I won over by the accused party, in such cases, the testimony of a police officer as a Mashir to the recovery can be accepted. However, we may also observe that the investigation officer should have a respectable resident of the locality as a Mashir to the recovery, instead of having a police Constable or Head Constable, where it is possible.
11. Adverting to the submission of Mr. Muhammad Hayat Junejo, learned counsel for the appellants that there was delay of about 3 months in dispatching of the empties and the crime weapon, it may be observed that the Ballistic Expert's report is Exh. P. T., which indicates that the parcels containing the empties and the crime weapons were sent by the Nasirabad Police on 31st August, 1985, whereas the incident had taken place on 16th April, 1985. The recoveries were made in April and May, 1985. The last recovery from the appellant Shah Dost was made on 25th May, 1985. It is, therefore, evident that there was delay of more than 3 months in despatching of the empties and the crime weapons. In the cross-examination P. W. j5 S. I. Jameel Asghar has stated that he had sought permission from the S. P. For sending the above articles to the Ballistic Expert, but he was unable to say, whether factually they were sent after the expiry of 3 months. According to him, the above articles were in the "Malkhana" till the time of despatch.
Mr. Muhammad Hayat Junejo in furtherance of his above submission has referred to the case of Muhammad Shafi and another v. The State (PLD 1968 Lah. 869), and the case of Muhammad Khan v. The State (1986 P Cr. L J 102). In the former case, it was held by a Division Bench of the erstwhile High Court of West Pakistan at Lahore that since the crime empties were sent after the expiry of nearly 8 or 9 days to the office of Forensic Science Laboratory, the recovery had no value, whereas, in the latter case, the crime empties and the gun recovered from the accused were delivered in the office of Forensic Science Laboratory after 13 and 11 days respectively, a Division Bench of the Lahore High Court held that the possibility of substitution of crime empties could not be ruled out and, therefore, the above recovery was of no consequence.
Whereas, Mr. Muhammad Nawaz, learned counsel for the State has referred to the case of Sawali and others v. The State (PLD 1982 SC 92), in which, there was delay of 17 or 18 months in sending the hatchet recovered from one of the accused. It was held that the above delay was not fatal as nothing was suggested to the S. H. O. In his cross-examination, as to how it took such a long time to send the hatchet for examination and that nothing would turn on the delay simpliciter. He has also referred to the case of Mubarak v. The State (1982 SCMR 531), in which, the crime empties and the gun were sent to the Ballistic Expert after about 3 months and there was positive report. It was held by the Honourable Supreme Court that mere delay in sending the crime empties and the weapon for comparison to the Ballistic Expert cannot by itself imply that the recovery is doubtful.
12. It. May be pointed out that according to Mr. Junejo there is a High Court circular in Punjab Province, which enjoins the Investigating Agency to send empties without any delay even without the crime weapon in order to eliminate the possibility of foisting of a weapon as a crime weapon.
Learned counsel for the appellants is unable to point out that a similar circular was issued in the Province of Baluchistan. Be that as it may, the preponderance of judicial view obtaining in Pakistan at present seems to be that simpliciter delay in despatching of the empties and the crime weapon will not be fatal, unless it is attended by circumstances, x which cast doubt as to the genuineness of the recoveries, or indicates tampering with the sealed parcels. In the present case, there are, certain circumstances mentioned here in below, which adversely reflect on the genuineness of the recoveries.
13. As regards Mr. Muhammad Hayat Junejo's contention that since the appellant Zanghi was falsely implicated, the recovery of Klashinkov from him was apparently foisted on him and, therefore, this would adversely reflect the recoveries from the other appellants, it may be observed that the above contention seems to have substance. If foisting of a weapon in respect of one appellant was possible, it must follow that the possibility of foisting of crime weapons on the other appellants cannot be ruled out.
This leads us to the last submission of Mr. Muhammad Hayat Junejo, learned counsel for the appellants on the point of recovery, namely, that to the alleged recovery made from the appellant Mohib Ali though the Mashir was a private' person, i. e. P. W. 8 Shadi Khan, but he was closely' related to the complainant party and his evidence does not inspire confidence, it may be observed that P. W. 8 Sbadi Khan who was one of the Mashirs to the recovery from the appellant Mohib Ali has admitted that be was closely related to the complainant party. In view of the admitted enmity, implicit reliance cannot be placed on his evidence. Additionally, the appellant Mohib Ali was arrested on 20th April, 1985, whereas the alleged recovery was effected on 24th April, 1985, but P. W.
8 Shadi Khan has stated that the recovery was made from the above appellant Mohib Ali on the following day of the incident, i. e. On 17th April, 1985, which statement adversely reflects on his credibility for the reason that recovery was effected after about 9 days from the date of the incident, as pointed out hereinabove.
15. The cumulative effect of the above discussion is that, it will not be safe to rely upon the recoveries as a corroborative piece of evidence against the remaining 3 appellants, namely, Jani, Shah Dost and Mohib Ali.
16. There remains an important submission made by Mr. Muhammad Nawaz, learned counsel for the State, namely, that since the dead body was found in the house jointly occupied by the appellants Muhammad Aslam and Jani, the above fact provides requisite corroborative piece of evidence at least against the above two appellants. It may be observed that Mr. Muhammad Hayat June'o, learned counsel for the appellants has submitted that since the house was in joint possession of the above two appellants, the alleged factum that the dead-body was found from the Courtyard would not provide the required corroboration. He has also referred to the case of Muhammud Afzal v. The State (1983 SCMR1 ), in which, the Honourable Supreme Court allowed the appeal against the judgment of the Lahore High Court in a murder case and discarded the recovery of gun on the ground that the same was recovered from a "Havaili", which was jointly possessed by the two appellants Afzal and Ashraf and their father Sultan, who was also alive.
In our view, the above case is distinguishable from the instant case, in--asmuch as, in the present case, the house is in joint possession of the two appellants Muhammad Aslam and Jani, who are accused of commission of the above offence and not in their joint possession with a third person who is not involved in the commission of the offence, as was the case in the above-cited case. We have given our serious thought to this corroborative circumstance and we would have relied upon the same for the purpose of maintaining the conviction against the above two appellants Muhammad Q Aslam and Jani, but the medical evidence adversely reflects on the version given by the complainant party as to the time of the incident. According to the F. I. R., the incident had taken place at about 3.30 p. m., whereas according to the medical evidence, the time between the post- mortem and the death was 6 to 10 hours. The post-mortem was carried out at 5.25 p. m. To 6.25 p. m. If we take the period of 6 hours, then the incident must have taken place at about 11-25 a. m., but if we take 10 hours, then the incident must have taken place at 7-25 a. m. No explanation was sought by the prosecution from the Doctor on this aspect. It has, therefore, been contended by the learned counsel for the appellants that the R above medical evidence is to be relied upon in preference to the ocular version of the prosecution witnesses. He has referred to the case of Sardar Baig v. The State (1978 P Cr.L J690), in which, a Division Bench of the Lahore High Court held that the medical evidence is to be preferred over the testimony of witnesses, though the eye-witness in the aforesaid case was an injured eye--witness.
Whereas, Mr. Muhammad Nawaz, learned counsel for the State has submitted that the Doctor in his post-mortem report or in his deposition has not referred to various ingredients for the purpose of determining the time of death. He has referred to para. 6 at page 61 from the Medical Jurisprudence and Toxicology by Jaising P. Modi, 11th Edition, where the author has made the following observation: - "6. Time since death should be noted from the temperature of the body, post-mortem staining, rigor mortis, stage of putrefaction, and even from the degree of digestion of the stomach contents which, however, only yields evidence of doubtful value."
17. It will suffice to observe that it was for the prosection to have obtained clarification as to the above estimation of the Doctor as to the lapse of time between the death and the post-mortem and not for the appellants by asking him the basis on which he had formed his above opinion and about the percentage of margin of error: -- Additionally there seems to be some inherent improbabilities in the version given by the prosecution, inasmuch as, it is alleged that th S appellant Mohib Ali had taken the deceased Muhammad Ishaque on 15th April, 1985 from his village Syed Shah Muhammad Shah near Khanpur bridge to Usta Muhammad and came back on the day of incident, i. e. On 16th April, 1985 at 3.30 p. m. It is also alleged that the appellant Mohib Ali was in conspiracy with the other appellants. If in fact, the appellant Mohib Ali would have been involved in the conspiracy with the other appellants as alleged, he had ample opportunity to kill the deceased Muhammad Ishaque or to get him ambushed while proceeding to Usta Muhammad or coming back from there. At the same time, it has also been admitted by the prosecution witnesses that the above appellant Mohib Ali was friendly with the deceased Muhammad Ishaque to the extent that he had taken him for a trip to Usta Muhammad for one day. Furthermore, it is also alleged that the deceased Muhammad Ishaque had Klashinkov with him, which was allegedly misappropriated by the appellants, for which, they were charged under section 404, P. P. C., but were acquitted. If in fact, the deceased Muhammad Ishaque had Klashinkov with him, he would have used it. Another factor, which casts doubt, is as to why so many persons would have been armed to kill one unarmed person near his house when they could have done away with him at any other place.
18. For the foregoing reasons, we allow the appeal and set aside the convictions and sentences.
The appellants shall be released forthwith, unless they are required in some other case.